Matthew Gibson
Liverpool Law School, University of Liverpool
(mgibson@liverpool.ac.uk)
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Religious liberty protected at law in a variety of ways: criminal laws;
human rights laws (freedom of religion); discrimination laws
(religious discrimination); religious exemptions to other
discrimination laws, eg to sex and sexual orientation discrimination
in employment.
Nevertheless, recent legal decisions in our discrimination law have
still constrained religious freedom leading to calls for further
religious liberty protection: notably, the concept of ‘reasonable
accommodation’, its utility in religious discrimination claims and
whether it should be introduced.
Academic consideration of both what reasonable accommodation is
and how far it may aid religious liberty has increased. There have
also been corresponding discussions in both national and supranational courts, the media, together with reports by interested
parties on the potential for reasonable accommodation of religion
in discrimination cases (EHRC; Christians in Parliament; Christian
figures).
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1)
2)
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a)
b)
c)
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The possibility of ‘reasonable accommodation’ of religion in two
situations:
employment (religious employees); and,
the provision of goods and services (religious providers).
1) Employment: three types of claim –
Accommodation re: work timetables.
Accommodation re: dress policy.
Accommodation re: beliefs concerning matters of sexual
orientation.
Focus on 1c) and how far a legal test of reasonable
accommodation may help reconcile these disputes. Analysis
informed by facts of recent cases. Concerned with the
facts/issues in practice and whether a model of ‘reasonable
accommodation’ would exempt religious employees. Should
this be done?
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McCLINTOCK v. DEPARTMENT OF CONSTITUTIONAL AFFAIRS (2007)
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LADELE v. LONDON BOROUGH OF ISLINGTON (2009)
◦ A Christian magistrate wished to be excused from those elements of his judicial
duties which required him to sit on same-sex adoption applications following
changes to adoption laws. He resigned from this part of his role and
subsequently lost his claim for religious discrimination.
o
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A Christian registrar of births, marriages and deaths, whose employers also
designated as a civil partnership registrar following the introduction of the Civil
Partnership Act 2005 but were not forced to so designate by law, lost her claim
for religious discrimination when she refused to officiate civil partnership
ceremonies.
McFARLANE v. RELATE AVON LTD (2010)
◦ A Christian counsellor, who counselled both mixed and same-sex couples on
relationship matters (including sexual matters if they arose for discussion),
became qualified in psycho-sexual therapy (of its nature concerned with
therapy specifically of sexual dysfunction) and sought an exemption from his
employers that he would not have to engage in PST therapy with same-sex
couples. The employers refused and his claim for religious discrimination was
unsuccessful.
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Reasonable accommodation test in
employment:
 Accommodation up to employer ‘undue hardship’. Based on a ‘de
minimis’ test.
 Economic and non-economic hardship permitted (non-economic
will relate to disruption and administration).
 No undue hardship where total lack of employer accommodation
(rare). But if found, employee may suggest alternatives.
 Confusion over hypothetical undue hardship? Does it count as
hardship if employer cites it? eg. effects of accommodating the
religious employee on other workers.
 Undue hardship on employer likely to be found where employer has
made accommodation suggestions, even where impractical or
unhelpful.
 If total lack of employer accommodation only ‘measured’ employee
suggestions are valid. Such employee suggestions may still be
overridden by the employer’s if made at a later date.
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Reasonable accommodation test in
employment:
Accommodation up to ‘undue hardship’. No de minimis rule.
Financial cost to the employer:
Employee morale:
Inter-changeability of the workforce and facilities:
Size of the employer? Inter-linked with above sub-tests.
Safety risks, magnitude of risks and those who bear the
risks:
 Critically, this is non-exhaustive. Can consider any other
relevant factors.
 Now – an impossibility test?
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Some adjustments that can be considered? (Equality Act
2010, s. 20; Equality and Human Rights Commission’s
Employment Statutory Code of Practice: Equality Act 2010 )
 Enabling the person to have some of their duties
allocated to another person;
 transferring the person within an organisation to fill an
existing vacancy;
 having hours of work or training altered;
 assigning the person to a different place of work or
training;
 giving to the person, or arranging for them, training or
mentoring; and,
 conducting a proper assessment of what reasonable
adjustments may be required.
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The critical factor is the ‘reasonableness’ of adjustments. See
Equality and Human Rights Commission’s Employment
Statutory Code of Practice: Equality Act 2010 .
 the extent to which it is practicable for an employer to
take the step;
 the financial and other costs which would be incurred by
an employer in taking the step and the extent to which
taking it would disrupt any of their activities;
 the extent of the employers financial and other resources;
 the availability to the employer of financial or other
assistance with respect to taking the step;
 the nature of the employers activities and the size of their
undertaking; and,
 the effects of adjustments on other workers.
L was appointed as a registrar of births, marriages and
deaths in 1992.
• With the recognition in domestic law of same-sex civil
partnerships via the Civil Partnership Act 2005, such
partnerships also had to be registered and each
registration authority had to ensure there was a sufficient
number of civil partnership registrars.
• However, each authority could choose who it designated
in such a role: some were selective; others like Islington
designated all their existing registrars with civil
partnership duties without consultation.
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L took the view that participation in same-sex civil
partnerships was inconsistent with her disapproval, as a
Christian, of homosexuality.
Two other workers did too. One voluntarily left Islington’s
service; the other was found alternative work with the
same pay and accepted.
For a period her employers turned a ‘blind eye’ to the fact
she swapped rotas with other colleagues in order to avoid
officiating at civil partnership. It later offered her a
temporary accommodation: her duties could be confined
to the simple signing process at civil partnership
ceremonies as opposed to the full ceremonies themselves.
She refused this offer.
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L’s employers had implemented a ‘Dignity At Work’ policy
which guaranteed equal treatment to other employees and,
indeed, members of the public, on grounds of – amongst
others – sexual orientation. The latter guarantee also
underscored its legal duty not to discriminate on grounds of
sexual orientation in the provision of goods and services.
Moreover, L’s employers were under threat of sexual
orientation discrimination claims by gay members of staff
who had been made aware, by L, of her views on same-sex
relationships, and who took the view that her refusal to be
involved in civil partnerships was indicative of homophobia
and breached the employer’s dignity at work policy.
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L was disciplined and subsequently sacked.
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Her claims for religious discrimination were unsuccessful.
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The Court of Appeal found that once L had
been designated as a ‘civil partnership
registar’, Islington were not merely entitled
to require her to perform civil partnerships
but were obliged to do so.
The CA in Ladele noted that some
registration authorities had decided not to
designate registrars who shared L’s beliefs
as civil partnership registrars and stated
that ‘such decisions may well be lawful’,
para. 75.
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United States Model
 Were there reasonable accommodations that the employer could
have made for Ladele up to the point of undue hardship?
 If so, total lack of employer accommodation? Offer of not having to
officiate at civil partnerships with no ceremonies. But temporary
offer? Unhelpful or unrealistic?
 No hypothetical hardship, eg on other employers. Rather, evidence
of real hardship re: gay co-worker complaint letters.
 Alternative ‘measured’ suggestion by employee? Refuse to
officiate/swap duties with colleagues. Over-ridden by employer
accommodation offer?
Canadian Model
 Any discernible financial cost to employer??
 Employee morale? Only 2 other registrars. Importance of
tolerance/flexibility? But issue of dignity policy?
 Inter-changeability of workforce? Evidence of roles swapped
satisfactorily. Long-term viability for employer?
 Impossible for employer not to accommodate?
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UK Disability Model: Adjustments?
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UK Disability Model: Reasonableness?
 Duties allocated to another person? Other registrars
prepared to assist?
 The modifying of Ladele’s duties to not officiate at actual
civil partnership ceremonies.
 Transferral elsewhere in organisation?
 the extent to which taking the step would actually prevent
the effect to which the duty is imposed. Implications of the
dignity policy?
 Practicable – if no financial burden. Disruption to work
patterns/timetabling?
 Effects on other workers? 2 adverse worker effects identified.
 However, evidence of another worker who may have had
similar views to Ladele.
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Narrowness of U.S. model.
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Potential generous flexibility of Canadian model?
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Uncertain balancing of UK Disability approach.
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Reasonable accommodation of religion in case of clashing beliefs with
matters of sexual orientation is likely to be unsuccessful given issues of
law and policy that would be breached if it were allowed.
These issues are at play in Ladele but, on the rather unique and unusual
facts, they could have been avoided.
Putting Ladele to one side, would we be able to say that accommodating
the individuals in McClintock and McFarlane was ‘reasonable’? Will
reasonable accommodation be limited to claims against employers and
goods/service providers where there is no clash with other protected
characteristics, eg sexual orientation?